LGJ: On Brown v. Entertainment Merchants Assn.

I believe I likely owe you an apology. LGJ should have covered this decision the day it was issued, but unfortunately, sometimes clients have to come first. So here we are, a few days after the decision, and the topic has been covered in great detail. I have read the decision, but have largely avoided other coverage of the case so that I could give you my opinion without being impacted by other analysis. Since I imagine most coverage has largely been focused on the majority opinion alone, I will also be discussing the concurring and dissenting opinions. As always, this is simply my opinion on the decision, and to that end, there is some room for people to disagree.

This was, in short, about the best possible outcome, both for the game industry and for the public at large, that could have been expected. It was also an opinion that was the most consistent with existing case law and contemporary First Amendment legal theory. The most important aspect to this case was the court stating fairly unequivocally that new and different forms of media shouldn't be treated any differently simply because they are new and different forms of media. Ultimately, obscene content is obscene content, and though some media may have an easier time crossing the line than others, that doesn't mean the line moves.

In fact, the line itself was another key element of the decision. The law in the United States has been pretty well settled on what we consider 'obscene' for quite some time, and the Court's continued stance that those boundaries should not be changed was quite reassuring to the preservation of free speech. To be frank, the Court's discussion of violent content in children's material was more or less perfect, as was the indication that interactivity in media does, to some degree, pre-date the game industry. With this opinion, it seems unequivocal that violent speech, in the Unites States, is simply off the table for regulation at all levels, provided the means of production are not illegal already.

Games that were 'obscene' before are still 'obscene' now

Equally well placed was the court's discussion of the relatively arbitrary practical effect of the law, especially given that it does not go substantially further than the industry's self-regulation. The overinclusive/underinclusive discussion in the opinion illustrates just how misplaced the law really was in the grand scheme of things. The majority opinion really cemented a statement that often said by the industry but too often not taken to heart by politicians: Parents are ultimately responsible for their child's media consumption. When parents take back their living rooms, this issue becomes far more of a non-issue, and no regulation is going to change that. In fact, simple use of the existing parental controls correctly would be far more effective than any sales-related regulation could be.

It is important to note that this opinion essentially ensures the status quo; it is not a carte blanche that all games are protected speech. Games that were 'obscene' before are still 'obscene' now, and while those games are few and far between, they will still likely not be sold by most retailers as a matter of policy. In fact, the citing of these games in various parts of the opinion, primarily the concurring opinion, is more red herring than substance; this law wouldn't make titles like RapeLay any more or less available.

Moving on to Justice Alito's concurring opinion, a different picture emerges. In fact, one of his key issues, that each new media needs to be examined cautiously, is precisely the problem with his opinion. As I noted earlier, the equal treatment of media was, in my mind, one of the most important issues presented in the majority opinion. It has become tiresome to revisit this same issue every time we take a technological step forward in entertainment. If I am stepping into the Halo universe, that story will not have a substantially different impact if I am reading it, watching it, playing it, or living it in some Holodeck in the future. While I can appreciate that some technologies may actually impact biological functions, i.e. nano-machines, this is a non-issue until entertainment media makes a leap to actually chemically or mechanically altering our bodies. Even in that instance, the issue is still not the speech itself; at that point, the concern would be one of health and safety, for the FDA or other similar entity to regulate.

If anything, Justice Thomas's dissent is more a condemnation of modern parents than a justification of the law, even though he clearly did not intend it to be.

The two dissents, while not unexpected, both focus on a 'traditional' First Amendment analysis. Taking them in order, Justice Thomas takes an original intent approach, and while his analysis is correct from this perspective, it seems inappropriate to default to this antiquated methodology to analyze a modern problem. In fact, I would say the greatest issue facing the 21st century is how to move forward with the existing legal framework, and great legal battles will likely continue over how best to apply laws that did not contemplate the digital age to our current reality. Returning to Justice Thomas, his class of speech addressing minors being addressed directly without going through their parents raises an interesting question. We require parental consent for a myriad of things, so why not gaming? The obvious answer is that we already have, to some degree, through the basic functioning of our free market system, and that we already are not requiring any greater degree of intervention for television or other media.

Video games are not free. Children don't generally have substantial income, and what income they do have would largely be from their parents in the form of an allowance or payment for chores. Other than gifts, that is the only income they have, and parents thereby have substantial control over spending. The idea that millions of 8 year olds are running around with $60 or more to purchase all of the latest, most violent games (provided the store will even sell the game to them) is flawed from the outset. This regulation at best primarily applies to the small number of 14-17 year olds who have jobs that could sustain an income of a level to buy the games. But this is all beside the point, as ultimately, a parent taking control over what goes on in their home would still be more effective than any regulation. While Justice Thomas's research is certainly interesting and well intentioned, it seems to miss the practical reality that grounds the majority opinion. If anything, Justice Thomas's dissent is more a condemnation of modern parents than a justification of the law, even though he clearly did not intend it to be.

Finally, Justice Breyer's dissent presents its own flaws. His analysis of the language in the statute being properly narrowing seems to lack any grounding in media exposure. Take 'maiming' for example. 'Maiming' is regularly shown on broadcast TV. While there is certainly more graphic maiming in some media than others, the statute does nothing to differentiate between depictions. The same can be said of 'dismember' and 'kill.' Children's TV shows characters being killed in a far different way than an R-rated movie. In fact, it could be argued that humanoids are killed in some of the least offensive video games of all time, like Super Mario Brothers and The Legend of Zelda. The idea that this language is sufficiently narrow is at best a stretch, but at worst simply wrong. Moreover, who is to say how to apply these vague standards in practice? While much can be said for Justice Breyer pointing out the double standard that exists in US culture among depictions of sex and violence, it's not the first time the peculiarities of US culture have been noted as such.

The opinion [PDF] is one that is absolutely worth reading and, as far as Supreme Court opinions go, it's relatively easy to follow and pretty accessible. Like any Supreme Court opinion, it is open to some level of interpretation and its true impact won't be seen until it's applied in practice in other cases. Such is the nature of the common law-based legal system. However, presuming its application remains relatively consistent with the text of the opinion, it's a pretty big victory, not just for the games industry, but for both free speech and industry self-regulation.

Mark Methenitis is the Editor in Chief of the Law of the Game blog, which discusses legal issues in video games. Mr. Methenitis is also a licensed attorney in the state of Texas with The Vernon Law Group, PLLC and a member of the Texas Bar Assoc., American Bar Assoc., and the International Game Developers Assoc., where he is a board member of the Dallas chapter. Opinions expressed in this column are his own.

Reach Mark at: lawofthegame [AAT] gmail [DAWT] com

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